The validity of evidence obtained via surveillance cameras
On February 9, 2015, the Madrid High Court issued a judgment on a case in which a worker was dismissed after the company’s suspicions that he had been stealing articles of clothing and accessories manufactured at the facilities were borne out following the temporary installation of cameras in a specific part of the workplace.
This judgment analyses the validity of evidence obtained through video surveillance cameras and its bearing on the fundamental right to privacy (including from the standpoint of personal data protection).
The judgment examines constitutional case law on the subject, and specifies which aspects move away from the case analyzed in the recent Supreme Court Judgment of May 13, 2014 (in which a majority of judges considered unlawful evidence that had been obtained through the use of cameras—applying the principles adopted by the Constitutional Court (TC) in decision no. 29/2013).
The main differences between these judgments are:
- In the case analyzed by the Supreme Court, the first instance courts held that the existence of prior suspicion had not been evidenced, whereas in the Madrid High Court case it was deemed to have been evidenced.
- In the case analyzed by the Supreme Court, the video surveillance system that had been installed was permanent (as in Constitutional Court judgment 29/2013) and not temporary (as in the case of the judgment by the Madrid High Court–one month–and that of Constitutional Court judgment 186/2000). This aspect (the permanent/preventive nature as opposed to the temporary/one-off nature) is relevant for the Madrid High Court in relation to the duty to inform data subjects in advance of the potential processing of their data.
- In the Supreme Court judgment case, although the cameras were visible, there were signs referring to their existence, and the workers’ statutory representatives were informed at the time they were installed (three years previously), the aim of the surveillance was to prevent theft by individuals unrelated to the establishment (not to control the workers).
- As a result, in the Supreme Court case the workers’ statutory representatives were not informed that they were being filmed by cameras, whereas in the Madrid High Court case, there were prior suspicions of unlawful conduct, the installation of the cameras was decided upon on a temporary, one-off basis, and the chairman of the Works committee had been informed in advance.
In this regard it should be underscored that article 64.5.f) of the Workers’ Statute requires that the workers’ representatives be informed and consulted if work control systems are going to be set up and reviewed.
Following this analysis, the Madrid High Court concluded that the use of cameras in the case analyzed was valid, since it fulfilled the suitability, need and proportionality criteria established by the Constitutional Court (especially in its judgment 186/2000) in relation to the fundamental right to privacy, holding that the duty to inform the workers had been fulfilled (since the cameras had been used specifically to verify whether the company’s suspicions were correct and the Chairman of the works committee had been informed).
In short, it can be said in light of the above judgments, that the use of cameras in the workplace is viewed differently according to the specific case involved, and in each case it is necessary to analyze whether the circumstances involved meet the constitutional criteria established. This is not a simple task since these criteria are open to different interpretations.
It remains for us now to wait and see whether the stance taken by the Madrid High Court in the judgment in question will be confirmed in the future in other judgments.
Garrigues Labor and Employment Law Department